Uttara Bank Limited Versus X Transport Services Limited

IN THE COURT OF DISTRICT JUDGE, DHAKA

ARTHA RIN SUIT NO. __ __Of 2008

Uttara Bank Limited

Local Office

129-130, Motijheel Commercial Area

P.S. Motijheel

Dhaka – 1000

Plaintiff

Versus

1. X Transport Services Limited

Ellal Chamber

11, Motijheel Commercial Area

Dhaka – 1000

2. Mr. A

Director of X Transport Services Limited

And Partner of M/s. Y and Brothers ‘Ellal Chamber’

11, Motijheel Commercial Area

Dhaka – 1000

3. Mr. Mojibul Y

Director of X Transport Services Limited

And Partner of M/s. Y and Brothers

‘Ellal Chamber’

11, Motijheel Commercial Area

Dhaka – 1000

4. M/s. Y and Brothers

‘Ellal Chamber’

11, Motijheel Commercial Area

Dhaka – 1000

5. Mr. B

(Son of Z)

Partner of M/s. Y and Brothers

House No. 01, Plot No. 521

Road No. 10, Mirpur Road

Dhanmondi, Dhaka

6. Mr. C

(Son of late Z)

Partner of M/s. Y and Brothers

House No. 01, Plot No. 521

Road No. 10, Mirpur Road

Dhanmondi, Dhaka

7. Mr. D

(Son of late Z)

Partner of M/s. Yand Brothers

House No. 01, Plot No. 521

Road No. 10, Mirpur Road

Dhanmondi, Dhaka

8. Mr. E

(Son of late Z)

Partner of M/s. Yand Brothers

House No. 01, Plot No. 521

Road No. 10, Mirpur Road

Dhanmondi, Dhaka

9. Mrs. F

Daughter of late Z

House No. 01

Plot No. 521

Road No. 10

Dhanmondi Residential Area

Dhaka

10. Mrs. G

Daughter of late Z

House No. 01

Plot No. 521

Road No. 10

Dhanmondi Residential Area

Dhaka

11. H

Wife of late Z

House No. 01, Plot No. 521

Road No. 10

Dhanmondi Residential Area

Dhaka

And

Mukunda Gata

P.S. Bel Kuti

Dist. Sirajgonj

Defendants

SUIT FOR RECOVERY OF LOAN BY SALE OF MORTGAGED PROPERTIES

SUIT VALUED AT TK. 20,15,953.00

(TAKA TWENTY LAC FIFTEEN THOUSAND NINE HUNDRED FIFTY THREE) AS ON 31.01.08

The plaintiff above-named most respectfully states as:

FOLLOWS:

1. That the plaintiff is a banking company incorporated under the relevant Companies Act of Bangladesh having its Head Office at 90, Motijheel Commercial Area, Dhaka. It carries on banking business within the territory of Bangladesh through its various branch offices including Local Office, at 129-130, Motijheel Commercial Area, Dhaka (hereinafter referred to as the “plaintiff bank”).

2. That the defendant No.1 is a company limited by shares involved in transport business having registered address as given in the cause title. The defendant No. 2 and 3 are the directors of the defendant No.1 and partners of defendant No. 4, they mortgaged their land to secure the loan availed by the defendant No.1, they are also heirs of co-mortgagor late Z. The defendant No. 4 is partnership firm having address as given in the cause title who mortgaged its land and executed guarantee to secure loan of defendant No.1. The defendant No. 5-8 are the partners of defendant No. 4 and mortgaged their land to secure the loan of the defendant No.1 and they are also heirs of late Z who mortgaged his property and executed personal guarantee during his life time. The defendant No. 9 to 11 are heirs of late Z who are co-owners of the left estate including mortgaged property of late Z and are made party in the suit.

3. That in response to the request of the defendant No.1, the plaintiff bank sanctioned and renewed the following credit facilities in favour of the defendant No.1 inter alia in the following manner:

Name of the facility date of the sanction letter/sanction advice Amount

(In Taka)
TOD/SOD 23.11.85 Tk. 40 lac
Cash Credit (Water transport) 06.05.86 and 04.06.86 Tk. 40 lac
Additional Loan 02.11.86 Tk. 15 lac

4. That the loan facilities were secured inter alia as follows:

a) Registered mortgage of land measuring 01 bigha 02 katha and 03 chattak with 03 storied building situated at House No. 01, Road – 10, Mouza Dhanmondi, Plot No. 521, P.S. Dhanmondi, District Dhaka vide Deed of Mortgage No. 6237 dated 18.06.86 supported by Irrevocable General Power of Attorney No. 6238 dated 18.06.86. The property was owned by late Z when it was mortgaged.

b) Equitable and registered mortgage of land measuring 41 decimal with land and building of ‘Alta Cinema Hall’ situated within District Jamalpur, P.S. Sharishabari, Mouza Shimla Gopinath, S.A. Hal Khatian No. 3/1, Dag No. Sabek and Hal 308 and 309 vide deposition of Deed of Hiba-bil-Iwaz No. 6409 dated 19.04.83 and vide execution of Memorandum of Deposit of Title Deeds. The property stands in the name of M/s. Y & Brothers represented by Mr. Md. Mojibul Ferdous, B, Md. Munjoor E Matin, Md. Maksud E matin, Md. Mobarak E Matin.

c) Guarantee of defendant No. 04.

d) Personal guarantee of defendant No. 2 and 3 and late Z.

e) Usual charge documents including but not limited to Demand promissory note, letter of continuity, letter of revival, Agreement for Cash Credit, Letter of Hypothecation.

5. That the defendant No. 1 availed the above mentioned credit facilities in full failed to adjust its loan account within the validity according to the sanction letters. That plaintiff bank in many occasions requested the defendant No.1 to adjust its liabilities with the plaintiff bank but all were in vain. None of the defendants and/or their predecessor were come forward to adjust the said liabilities.

6. That finding no other alternative the plaintiff bank filed, the plaintiff filed Artha Rin Suit No. 34/2004 in the 2nd Artha Rin Adalat, Dhaka for recovery of Tk. 1,02,38,632.25 (Taka one crore two lac thirty eight thousand six hundred thirty two and paisa twenty five) only inclusive interest as on 30.09.90. Pendency of the Artha Rin Suit 34/2004, Mr. Z on his death was substituted by the defendant No. 9 to 11 along with other defendants (defendant No. 2,3 and 5 to 8) in the Artha Rin Suit 34/2004.

7. That the defendants of the Artha Rin Suit No. 34 entered into an arrangement with the plaintiff to pay the outstanding amount in instalments. In this regard a joint application for compromise dated 17.08.04 (the Compromise Agreement) was filed in the Artha Rin Suit No. 34/2004 envisaging the repayment schedule to obtain sole-decree. Upon hearing of the application, the learned Judge of 2nd Artha Artha Rin Adalat, Dhaka passed order No. 116 dated 04.09.2004 stating that the Artha Rin Suit No. 34/2004 is sole-decreed with the defendants and the Compromise Agreement will be the part of the decree. Accordingly the Preliminary Decree was passed on 11.09.04.

8. That though the defendants were obliged to pay the instalments as per the Compromise Agreement, the defendants failed miserably to make payment of the instalments as per the Compromise Agreement.

9. That the plaintiff several times informed the defendants to regularise their instalments or adjust their loan liabilities according to the sole-decree but the period allowed by the Compromise Agreement was expired on 31.03.2005 leaving several instalments unpaid.

10. That since the plaintiff and the defendants in the Artha Rin Suit No. 34/2004 voluntarily entered into the arrangement and executed the Compromise Agreement envisaging the terms and conditions of repayment, according to the law the defendants were obliged to make payment according to the Compromise Agreement.

11. That the defendant paid in total Tk. 76 lac only out of Tk. 90 lac for which the defendants were liable to pay to the plaintiff according to the Compromise Agreement.

12. That since the defendants have failed to pay the instalments as per the Compromise Agreement and the schedule mortgaged properties are mortgaged with the bank and according to the Preliminary Decree it is necessary to obtain fresh decree for the balance amount of Tk. 20,15,923.00 (Taka twenty lac fifteen thousand nine hundred twenty three) only along with interest from 01.04.05 to 31.10.08 by selling the mortgaged properties.

13. That present outstanding liabilities of the defendants stand at Tk. 20,15,923.00 (Taka twenty lac fifteen thousand nine hundred twenty three) only inclusive interest as on 31.01.08 for which the defendants are liable to the plaintiff.

14. That the plaintiff bank gave the defendants ample time and opportunity to adjust the outstanding liabilities with the plaintiff bank but the defendants are reluctant in this regard. It is abundantly clear that the defendants would not adjust the plaintiff bank’s dues unless compelled by law.

15. That the plaintiff bank cannot wait for an indefinite period for the defendants to recover its legitimate dues. Having no other alternative the plaintiff bank is compelled to file this suit against the defendants to realize its legitimate dues.

16. That the cause of action to file this suit arose on the dates when the defendant No.1 applied to the plaintiff for credit facilities, on the dates when the plaintiff bank sanctioned/renewed the credit facilities, on the dates when the defendants executed the mortgages and charge documents, on the dates when the defendants executed personal guarantee, on the dates when the defendant initially failed to repay the loan breaching the sanction letters, on the date when the Artha Rin Suit No. 34/04 was filed, on 17.08.04 when the plaintiff and the defendants jointly filed Compromise Agreement/application filed in the 2nd Artha Rin Adalat, Dhaka, on 04.09.04 when the 2nd Artha Rin Adalat, Dhaka allowed the Compromise Agreement/application, on 11.09.04 when 2nd Artha Rin Adalat, Dhaka passed preliminary decree, on 31.07.04, 31.10.04, 31.12.04 and 31.03.05, the defendants failed to pay the instalment, on 31.03.05 when the defendants failed to pay the Compromise Amount within the validity, on 09.11.05 when the defendants paid lastly an amount of Tk. 70,00,000.00 only acknowledging debt with the plaintiff bank, on the dates when the plaintiff bank requested the defendants to adjust its outstanding dues and the said cause of action is continuing till date.

17. That the suit is for realisation of Tk. 20,15,923.00 (Taka twenty lac fifteen thousand nine hundred twenty three) only inclusive of interest as on 31.01.08 and the suit is within the jurisdiction of this Court. The plaintiff bank shall pay highest Court Fees on the suit value.

18. That the Authorised Representative of the plaintiff bank in the instant suit is ___________________, _____________ Officer of the plaintiff bank who is well conversant with the facts of the case and shall be liable to testify on behalf of the plaintiff bank.

The plaintiff bank therefore prays for:

(a) A decree for a sum of Tk. 20,15,923.00 (Taka twenty lac fifteen thousand nine hundred twenty three) only inclusive of interest as on 31.01.08 in favour of the plaintiff bank and against the defendants jointly and/or severally;

(b) A decree for the sale of the mortgaged properties.;

(c) A personal decree against the defendant Nos. 02 to 08;

(d) A decree for the pendente-lite interest at the rate stipulated in the Artha Rin Adalat Ain, 2003 from the date of filing till the date of decree and from the date of decree till realisation of the decretal amount;

(e) Any other relief(s) to which the plaintiff bank is entitled in law and equity.

And for this act of kindness, the plaintiff bank as in duty bound shall ever pray.

SCHEDULE ‘A’

{Schedule under section 8(2) Ka Artha Rin Adalat Ain 2003}

Description of Loan & amount outstanding

Nature of Facility Limit

(in Tk.)

 Interest

From 01.04.05 to 31.01.08

(in Tk.)

 Amount repaid as on 09.11.05

(in Tk.)

 Outstanding amount as on 31.01.08

(in Tk.)
Term Loan 90 lac 6,15,923.00 76 lac 20,15,923.00

SCHEDULE ‘B’

{Schedule under section 8(2) Kha Artha Rin Adalat Ain 2003}

[Description of mortgaged properties which the plaintiff could not dispose off]

SCHEDULED OF MORTGAGED PROPERTY

a) All that piece and parcel of land measuring 01 bigha 02 katha and 03 chattak situated at within District Dhaka, P.S. Dhanmondi, Mouza Dhanmondi, House No. 01, Road – 10, Plot No. 521, Mirpur Road, along with 03 storied building and all rights and attached thereto.

b) All that piece and parcel of land measuring 41 decimal situated within District Jamalpur, P.S./Upazilla -Sharishabari, J.L. No. 192 Mouza Shimla Gopinath, S.A. Hal Khatian No. 3/1, Dag No. 308 and 309 along with land and building of ‘Alta Cinema Hall’ along with all structures and building constructed and to be constructed thereon together with all rights, interest, easement, benefits etc. attached thereto or appertaining to the land.

AFFIDAVIT

I, ______________________________ son of ___________________, Uttara Bank Limited, ______________________________, aged about ___________ years, by faith Muslim, Nationality Bangladeshi by birth, profession Service, do hereby solemnly affirm and declare as follows:

1. That I am the officer/tadbirkar of the plaintiff bank and well conversant with the facts of the case and competent to swear this Affidavit.

2. That the statements of facts made in this application are true to the best of my knowledge and belief and rests are submissions before this Hon’ble Court and in witness whereof I swear this affidavit and signed below on this the _______ day of February, 2008 at _________ a.m. before the Commissioner of affidavit.

DEPONENT
The deponent is known to me and identified by me.
ADVOCATE

`

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